USA v. Sanchez-Rodriguez et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
KEVIN GLENN PETERSON, II,
Defendant.
Case No. 3:23-cr-00090-RRB-KFR-3
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS
Before 	the 	Court 	is 	a 	Motion 	to 	Dismiss 	Indictment 	for 	Multiplicity
(hereinafter 	“Motion”) 	filed 	by 	Defendant 	Kevin 	Glenn 	Peterson, 	II.1 	The
government opposes the Motion.2 	Because each offense with which Defendant has
been charged requires proof of a fact that the others do not, and because it was
permissible to charge Defendant with two counts of each offense that involves a
different victim, the Court finds that the Indictment is not multiplicitous. The Court
recommends that the Motion be DENIED.
I. 	BACKGROUND
On October 18, 2023, a grand jury indicted Defendant, Heraclio Sanchez-
Rodriguez, and Tamara Denise Bren on charges of Continuing Criminal Enterprise 3
(Count 1), Conspiracy to Distribute and Possess with Intent to Distribute Fentanyl 4
(Count 2), Killing in Furtherance of Continuing Criminal Enterprise 5 (Counts 3–4),
Kidnapping Conspiracy6 (Count 5), Kidnapping Resulting in Death 7 (Counts 6–7),
1 Doc. 72.
2 Doc. 77.
3 21 U.S.C. § 848(a)–(b).
4 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A).
5 21 U.S.C. § 848(e)(1)(A).
6 18 U.S.C. § 1201(c).
7 18 U.S.C. §§ 1201(a)(1)–(2).
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Carjacking Resulting in Death8 (Counts 8–9), and Use of Firearm to Commit Murder
in Relation to Drug Trafficking Crime9 (Counts 10–11). 10 	Defendant is charged with
the offenses in Counts 2–11. 	The government alleges that Defendant coordinated
with his codefendants to kidnap two women, using “multiple vehicles to intercept
[one] victim’s vehicle near Trapper Creek, Alaska, so they could carry out the
kidnapping.”11 The government further alleges that Defendant “carried a firearm to
be used in the kidnapping[,] . . . restrained [the victims] under threat of force at the
direction of his coconspirators[,] . . . terminated a 911 call in progress made by [one
victim] during the kidnapping[,] . . . [and] drove [the victims] to a hidden location,
where he, at the direction of his coconspirator, . . . executed [the victims] with
gunshot wounds to the head.” 12 Finally, the government alleges, Defendant “buried
[the victims] in a shallow grave near Trapper Creek.” 13
On December 7, 2023, Defendant waived his right to counsel and made an oral
motion to represent himself, which the Court granted. 14 	On December 18, 2023,
Defendant filed the present Motion.15
II. 	LEGAL STANDARD
The Double Jeopardy Clause of the United States Constitution provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb.” 16 A multiplicitous indictment raises Double Jeopardy concerns because of the
“possibility that the defendant will receive more than one sentence for a single
offense.” 17 “An indictment is multiplicitous if it charges a single offense in multiple
8 18 U.S.C. § 2119.
9 18 U.S.C. § 924(c)(1), (j).
10 Doc. 4.
11 Doc. 78 at 2.
12 Id.
13 Id.
14 Doc. 67.
15 Doc. 72.
16 U.S. Const. amend. V.
17 United States v. Reedy, 304 F.3d 358, 363 (5th Cir.2002).
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counts.”18
To determine whether multiple statutory provisions under which a defendant
was charged are actually one offense, a court examines “whether each provision
requires proof of a fact which the other does not.” 19 	“The elements of the offenses
are determinative, even if there is a substantial overlap in their proof.”20 	“If two
different criminal statutory provisions indeed punish the same offense . . . then
conviction under both is presumed to violate congressional intent.”21
III. 	DISCUSSION
Defendant asks the Court to dismiss the Indictment against him, or, in the
alternative, to dismiss Counts 3–11 or to “make an election as to which count it will
pursue at trial.”22 	Defendant asserts that these counts are multiplicitous because
they involve “a single alleged conspiracy, murder, kidnapping and drug trafficking
crime.” 23 	Defendant contends that “[t]he conduct, agreement, and . . . overt acts
alleged in all [these] counts . . . are exactly the same,” and that no count “require[s]
proof of an additional fact” that the other counts do not.24 Defendant suggests that
any conviction on multiple counts would violate the Fifth Amendment’s prohibition
on double jeopardy. 25
The government opposes the Motion, arguing that each of the charged offenses
contains at least one element unique to the pertinent offense. 26 	The government
acknowledges that the Indictment “alleges two counts of each substantive offense,”
18 United States v. Wachumwah, 710 F.3d 862, 868 (9th Cir. 2013).
19 United States v. Overton, 573 F.3d 679, 691 (9th Cir. 2009) (quoting Blockburger v. United
States, 284 U.S. 299 (1932)).
20 United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985), superseded on other grounds
as recognized by Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1314 & n.2 (9th Cir.
1995).
21 United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008).
22 Doc. 72 at 1.
23 Id.
24 Id.
25 Id. at 2–3; see also Davenport, 519 F.3d at 943 (“The Fifth Amendment’s prohibition on
double jeopardy protects against being punished twice for a single criminal offense.”).
26 Doc. 77 at 3.
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aside from the single count of Kidnapping Conspiracy, but explains that this is
because there are two separate victims in this case. 27 Thus, the government asserts,
the Indictment does not contain any multiplicitous counts.28
The Court finds that each offense with which Defendant has been charged is
distinct. 	Among other differences, each offense requires proof of the following
unique element:
 	Counts 3–4 (Killing in Furtherance of Continuing Criminal Enterprise): the
defendant was either “engag[ed] in or working in furtherance of a continuing
criminal enterprise” or “engag[ed] in a [drug crime] under [21 U.S.C. §§
841(b)(1)(A) or 960(b)(1)].”29
 	Count 5 (Kidnapping Conspiracy): the defendant conspired to commit a
kidnapping with at least one other person.30
 	Counts 	6–7 	(Kidnapping 	Resulting 	in 	Death): 	the 	defendant 	“seize[d],
confine[d], 	inveigle[d], 	decoy[ed], 	kidnap[ped], 	abduct[ed], 	or 	carrie[d]
away . . . an[other] person.”31
 	Counts 8–9 (Carjacking Resulting in Death): the defendant “t[ook] a motor
vehicle . . . from the person or presence or another.”32
 	Counts 	10–11 	(Use 	of 	Firearm 	to 	Commit 	Murder 	in 	Relation 	to 	Drug
Trafficking Crime): requires that the defendant “use[d] or carrie[d] a firearm”
during and in relation to “any crime of violence or drug trafficking crime,” or
“possesse[d] a firearm” in furtherance of any such crime. 33
//
27 Id. at 4.
28 Id.
29 21 U.S.C. § 848(e)(1)(A); see also United States v. LaFleur, 971 F.2d 200, 212 (9th Cir.
1991).
30 18 U.S.C. § 1201(c).
31 18 U.S.C. § 1201.
32 18 U.S.C. § 2119.
33 18 U.S.C. § 924(c)(1)(A).
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In addition, to the extent Defendant argues the government may not prosecute
him for two counts each of four offenses, the Court disagrees. 	Even where the
Double Jeopardy Clause would bar “cumulative punishments for convictions on the
same offense, [it] does not prohibit the State from prosecuting [a] [defendant] for
such multiple offenses in a single prosecution.” 34 Thus, as long as sufficient evidence
supports an indictment’s charges, there is “no impropriety” in charging separate
counts for different violations of a single statute. 35 	This charging decision rests in
the government’s prosecutorial discretion. 36
The Ninth Circuit’s decision in United States v. Technic Services, Inc. is
instructive on this point.37 In that case, the Ninth Circuit affirmed the district court’s
decision to deny a defendant’s motion to consolidate six counts of obstruction on the
ground of multiplicity. 38 	The Ninth Circuit explained that “[a]n indictment is not
multiplicitous merely because it charges more than one violation of the same statute
based 	on 	related 	conduct; 	instead, 	a 	defendant 	can 	be 	convicted 	of 	multiple
violations of the same statute if the conduct underlying each violation involves a
separate and distinct act.”39 	Because each count of obstruction required proof of a
separate and distinct act—“that [the defendant] had solicited the particular person
named 	in 	that 	count 	to 	sign 	the 	false 	statement”—the 	counts 	were 	not
34 Ohio v. Johnson, 467 U.S. 493, 500 (1984) (emphasis added); see also United States v.
Josephberg, 459 F.3d 350, 355 (2d Cir. 2006) (“[T]he Double Jeopardy Clause does not
protect against simultaneous prosecutions for the same offense, so long as no more than one
punishment is eventually imposed.”).
35 See Ball v. United States, 470 U.S. 856, 860 n.8 (1985) (quoting United States v. Gaddis,
424 U.S. 544, 550 (1976)).
36 See United States v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what
charge to file or bring before a grand jury are decisions that generally rest in the
prosecutor’s discretion.”).
37 314 F.3d 1031, 1046 (9th Cir. 2002), overruled on other grounds by United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010).
38 Id.
39 Id.
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multiplicitous. 40
Here, similarly, each count of Killing in Furtherance of Continuing Criminal
Enterprise, Kidnapping Resulting in Death, Carjacking Resulting in Death, and Use
of Firearm to Commit Murder in Relation to Drug Trafficking Crime requires proof
that Defendant killed or caused the death of the specific person named in that
count.41 	The killing or death of each victim is a separate and distinct act and is
properly charged as a separate count.42
Furthermore, even if any counts in the Indictment were multiplicitous, the
most suitable remedy would be to allow those counts to proceed and to address any
multiplicitous convictions before sentencing. As Defendant points out, a court may
redress multiplicity in an indictment in several ways, including by dismissing the
multiplicitous counts or by ordering the government to elect counts under which it
will proceed. 43 	A court may also “choose to have all counts proceed to trial and
40 Id.; see also 18 U.S.C. § 1505 (providing for criminal penalties if the defendant “solicits
another” to obstruct congressional or administrative proceedings).
41 See 21 U.S.C. § 848(e)(1)(A) (providing for certain penalties if the defendant “intentionally
kills . . . an individual”); 18 U.S.C. § 1201(a) (providing for certain penalties “if the death of
any person results” from kidnapping); 18 U.S.C. § 2119 (providing for certain penalties “if
death results” from carjacking); 18 U.S.C. § 924(j) (providing for certain penalties if the
defendant “causes the death of a person through the use of a firearm”).
42 See Ashford v. Edwards, 780 F.2d 405 (4th Cir. 1985 (holding that there was no double
jeopardy violation where defendant was convicted of two counts of attempted robbery
arising from one incident involving two victims); LaMotte v. Slansky, 661 F. Supp. 573, 575
(D. Nev. June 11, 1997) (finding no double jeopardy violation where defendant pled guilty to
three counts of the same offense involving three different victims that resulted from a single
automobile accident); cf. also United States v. Melchor-Zaragoza, 351 F.3d 925, 928 (9th Cir.
2003) (“When . . . the gist of the offense is injury to persons, the offense against each human
victim belongs in a different group [for sentencing purposes], even when the offenses arose
out of a single event.” (quoting United States v. Jose-Gonzalez, 291 F.3d 697, 707 (10th Cir.
2002))); U.S. Sent’g Guidelines Manual § 3D1.2, cmt. 8 (U.S. Sent’g Comm’n 2023)
(explaining that in “[c]ases involving injury to distinct victims,” each count “should be
treated separately rather than grouped together” for sentencing purposes, regardless of
whether “the injuries are inflicted in distinct transactions”).
43 See Doc. 71 at 1; United States v. Aguilar, 756 F.2d 1418, 1423 (9th Cir. 1985); United States
v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997) (“A decision of whether to require the
prosecution to elect between multiplicitous counts before trial is within the discretion of the
trial court.”).
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vacate [any] . . . multiplicitous convictions prior to sentencing.”44 	This latter
remedy would be most appropriate here, where the government was within its
discretion in choosing to pursue separate counts for each offense that involves two
different victims, and where this choice does not appear to prejudice Defendant. 45
The Court perceives no meaningful risk of prejudice because of the overlapping
nature of the evidence pertaining to each victim: that is, the government will likely
present the same evidence at trial regardless of whether some of the multiple-victim
counts are dismissed or abandoned. 46
IV. 	CONCLUSION
Each offense to which Defendant objects requires proof of a fact that the
others do not. In addition, Defendant has properly been charged with two counts of
certain offenses due to there being two victims in this case. Accordingly, the Court
finds that the Indictment is not multiplicitous. 	The Court therefore recommends
that Defendant’s Motion to Dismiss Indictment for Multiplicity at Docket 72 be
DENIED.
DATED this 5th day of January, 2024 at Anchorage, Alaska.
44 United States v. King, 713 F. Supp. 2d 1207, 1218 (D. Haw. 2010) (citing United States v.
Hector, 577 F.3d 1099, 1101–03 (9th Cir. 2009)); see also, e.g., United States v. Green, No.
07-30116-GPM, 2008 WL 718153, at *1 (S.D. Ill. Mar. 14, 2008) (denying motion to dismiss
indictment 	due 	to 	multiplicity 	because 	the 	Double 	Jeopardy 	Clause 	was 	“not 	[yet]
implicated”).
45 See United States v. Matthews, 240 F.3d 806, 818 (9th Cir. 2000) (explaining that a
multiplicitous indictment does not lead to prejudice where “the government would have
introduced exactly the same evidence had the indictment contained only one count of the
charged offense” (internal quotation marks omitted) (quoting United States v. Nash, 115 F.3d
1431, 1438 (9th Cir. 1997))); see also United States v. Earley, 657 F.2d 195, 197 (8th Cir.
1981) (“The evidence discloses there were two distinct killings. . . . The prosecution was
justified in having evidence separately considered with respect to each death and its
connection with the larceny of the bank.”).
46 See, e.g., Doc. 4 at 11 (alleging conspiracy to kidnap both victims and killing of the victims
at the same location and time).
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s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge. 47 A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s findings and recommendations. 48
A party may file written objections to the magistrate judge’s findings and
recommendations within fourteen (14) days. 49 A response to the objections may be
filed within seven (7) days after any objection is filed. 50 	Objections and responses
are limited to five (5) pages in length and should not merely reargue positions
previously presented. Rather, objections and responses should specifically identify
the findings or recommendations objected to, the basis of the objection, and any legal
authority in support. Reports and recommendations are not appealable orders. Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of
the district court’s judgment. 51
47 28 U.S.C. § 636(b)(1)(B).
48 Id. § 636(b)(1)(C).
49 Id.; L.M.J.R. 7(a)(1).
50 L.M.J. R. 7(a)(2).
51 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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